Advice to Principled Soldiers Facing Court-Martial: ‘Be Bold’

Dahr Jamail

By: Dahr Jamail, t r u t h o u t

US Army Specialist Victor Agosto, who publicly refused to deploy with his unit to Afghanistan, was to receive the harshest court-martial possible for his decision – one that would land him in jail for up to one year, followed by a dishonorable discharge. However, within hours of the publication of a Truthout report about his story, Agosto received word from the military that his court-martial had been reduced.

The military had at first agreed to a less punitive court-martial for Agosto, but then, in a move that surprised both he and his lawyer, opted to push for a more stringent court-martial.

Agosto’s lawyer, James Branum, who is also the legal adviser to the GI Rights Hotline and co-chair of the Military Law Task Force, was in negotiations with the Army in efforts to seek a lower-level court-martial, so that Agosto would suffer the minimum penalties possible.

“We were working with the Army’s Trial Defense Services (TDS), and Victor has a military lawyer on his side as well, which I recommended he have,” Branum told Truthout during a July 10 phone interview.

“TDS had communicated to the prosecution for me that we were willing to accept an Article 15 and do a month of extra duty, then if he [Agosto] got a summary court-martial we’d take it – which would mean Victor would serve a maximum of 30 days in jail, and receive an Other Than Honorable discharge,” Branum explained, “So TDS said they took this offer to the CG [Commanding General] who was to sign off on it, but they said he made a mistake and wrote ‘special’ rather than ‘summary’ on the court-martial and sent it back down.”

Branum explained that “a summary court martial is little more than an Article 15. Supposedly there was an ‘honest’ mistake made by them handing down this special court martial, but I think they are playing games with us.”

Branum, angered by the turn of events, explained the difference between the types of court martial, “They [the Army] are not acting in good faith here. What this still means is the cap went from 30 days [of possible jail time for Agosto with a summary court martial] to a year [with a special court martial], so a pretty big jump I would say, and a leap from an Other Than Honorable discharge [summary court martial] to a bad conduct discharge [special court martial], which means once he is convicted his pay would stop.”

Due to the perceived breach of good faith by the Army during the negotiating process, Branum felt he had no choice but to up the stakes in Agosto’s upcoming court-martial. “Now we’re going to put the war on trial with their special court-martial,” Branum said, “They had their chance to keep this quiet and move on, but now we’re going to pull out all the stops and put the war on trial, and show how the whole thing is illegal.”

Truthout published Agosto’s story on July 14. Agosto, speaking to Truthout on July 18, explained what happened: “A couple of hours after the article was published, I got a phone call from my team chief, and he told me I needed to go to TDS because my attorney needed to speak to me. She [Capt. Jocelyn Stuart] told me the government wants the original deal, and that basically General Lynch was going to recommend the summary plea deal, so a few days later that was confirmed and I signed off on the last piece of paperwork that I needed to sign off on Friday [July 17].”

When asked what he thought about the military’s decision, Agosto told Truthout, “I think it’s great. It shows what a determined group of people can do. The power of the alternative media is evident. In a way I have mixed feelings about it – it would have been nice to put the war on trial.”

When Agosto refused to deploy to Afghanistan, the Army issued him a Counseling Statement (a punitive US Army memo) on May 1, which outlined actions taken by the Army to discipline Agosto for his refusal to obey a direct order from his company commander, Michael J. Pederson. Agosto wrote on the form, “There is no way I will deploy to Afghanistan. The occupation is immoral and unjust. It does not make the American people any safer. It has the opposite effect,” and posted it on his FaceBook page.

On another Counseling Statement dated May 18, Agosto wrote, “I will not obey any order I deem to be immoral or illegal.”

On May 27, rejecting an Article 15 – a nonjudicial punishment imposed by a commanding officer who believes a member of his command has committed an offense under the Uniform Code of Military Justice – Agosto demanded to be court-martialed instead.

Agosto’s lawyer, Branum, told Truthout during a phone interview on July 10 that, contrary to mainstream opinion that believes Afghanistan to be a “justified” war, the invasion and ongoing occupation are actually in violation of the US Constitution and international law.

“Victor is approaching this from the standpoint of law and ethics,” Branum explained, “It’s his own personal ethics and principles of the Nuremberg principles, that the war in Afghanistan does not meet the criteria for lawful war under the UN Charter, which says that member nations who joined the UN, as did the US, should give up war forever, aside from two exceptions: that the war is in self-defense, and that the use of force was authorized by the UN Security Council. The nation of Afghanistan did not attack the United States. The Taliban may have, but the nation and people of Afghanistan did not. And under US Law, the Supremacy Clause of the US Constitution, any treaty enacted by the US is now the ‘supreme law of the land.’ So when the United States signed the UN Charter, we made that our law as well.”

The Supremacy Clause is a clause in the United States Constitution, Article VI, Paragraph 2. The clause establishes the Constitution, Federal Statutes and US treaties as “the supreme law of the land.” The text establishes these as the highest form of law in the American legal system, mandating that state judges uphold them, even if state laws or constitutions conflict.

Branum is now pleased with the Army’s decision. He told Truthout on July 20, “I think the Army did the right thing. I’d have preferred Victor get no jail time at all, but it could have been far worse. I would have loved a not-guilty plea, but as far as the potential punishment, I am pleased with how this has turned out. It was clear the Army screwed up. Since they decided to do a special court-martial, we were going to put the war on trial. They saying they made a mistake – there is no way of knowing whether that is true or not. When we went public and said it was their mistake and we’re going to put the war on trial, at that point they realized they made a really big mistake and agreed to re-submit a summary court martial.”

Agosto told Truthout that his TDS lawyer told him she had “never heard of General Lynch signing off on a summary court-martial before” and “I think it was in response to your article.”

Agosto believes he will be put through a summary court-martial this week, then expects to be placed in a rear-detachment company after he serves his sentence, which will be a maximum of 30 days in a County Detention Center in Killeen, Texas, near Fort Hood where he is currently stationed.

“I thank everyone who has supported me through this, particularly the folks at the Under the Hood GI resistance cafe,” Agosto said, “If it wasn’t for their support for my resistance, the consequences would have been much greater.”

Branum explained that the defense “is allowed to present other matters within a short time after the trial to the general. Then the general has the power to approve the sentence as it is, or lower it. So we’re going to ask him to lower it, and present the 1,000 plus signatures from Victor’s petition, and letters from experts about the illegality of the war … this is our chance to continue to make it clear that we think it should be no days in jail, and this is our chance to have this information on the record.”

Branum told Truthout that he feels Agosto’s victory sends a clear message to other soldiers who are considering resistance.

“It sends a message to be bold,” he said. “There is a high likelihood that by being bold, it helps your own case. Be smart, of course, but the Army screws people over by keeping it ‘in house.’ My challenge is to be bold, shine the light. When the military is confronted with it, they are sometimes stunned by their own injustice. Appeal to their humanity and conscience, and if that doesn’t work, scare them.”